It could happen tomorrow. A Soldier might say, “Sir, I want to go to Afghanistan, but I am afraid that by violating the Geneva Conventions, I could be accused of a war crime. I am caught in a bad place. I cannot violate the Geneva Conventions and so there is no need to send me to Afghanistan to fly. I must refuse that unlawful order. If ordered, I will go to Afghanistan but I cannot fly in violation.The answer is, you obey your damn orders.
A Soldier is obligated to obey the law. A Soldier is obligated not to obey unlawful orders.
What would you do?
Every now and again, in court-martial practice, you run into someone with this new and brilliant idea. They or their families are antiwar activists; they'll disobey orders to deploy, proclaiming the war to be "illegal" according to their own understanding of international law; and in their fantasies they'll force their court-martial to decide the legality of the war. Even if they lose, so they dream, they'll be able to bring in a parade of experts to explain, in open court, why the war is evil - and do wonders for the cause.
It won't happen. A certain Dr. Yolanada Huet-Vaughn - a reservist and antiwar activist (who rather candidly admitted that she'd joined the reserves to lend credibility to her antiwar activities) - tried that very thing in the 1990's. The military appellate courts upheld her conviction, and here is the money quote:
"[t]he duty to disobey an unlawful order applies only to a positive act that constitutes a crime that is so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness."Pull an Abu Ghraib and the "Nuremberg defense" won't help you. But "Everyman His Own Supreme Court" is not the rule, nor never has it been.
To my knowledge, the closest thing to a successful "court-martial as spectacle" was the 1925 trial of Billy Mitchell, which you can read about there. Then-COL Mitchell (his general's rank had been temporary) loved to make public pronouncements about the stupidity and incompetence of the Army, especially with respect to aviation. He was tried under the prior version of the General Article by a court composed of generals (as was natural; the members had to outrank him).
In reading about the trial, it didn't surprise me that Mitchell tried to justify his actions by claiming his statements were true. It did very much surprise me that the court let him do it. I'm used to trials where the defense researches issues and obtains documents months and weeks before trial. In his case, the court allowed his defense team to acquire reams of War Department documents right in the middle of trial, and the two sides fought it out improvised, like rats in a hole.
Mitchell achieved the public spectacle he wanted, but not the success. His factual claims fell apart as the evidence came in, and he was convicted pretty quickly. His sentence - a suspension from duty - was nugatory, but it led him to resign. And yet that is the most successful "court martial as spectacle" (from the defense point of view) that I know. (Does someone know another? I'm not counting war crimes tribunals - I understand that Tojo gained a measure of respect in Japan for his brave performance at his own trial.) Nowadays, I suspect, Mitchell would not receive so much accomodation - no more than I could defend against a violation of this article by claiming the contemptuous words were true.
"Heroic disobedience" is an issue we talked about long ago - and I believe it is a hallmark of liberty under the rule of law, that disobeying the law is not heroic. (What I mean is, if you find situations where violating the law is a noble and heroic act, that is a sign of tyranny.) Thus, on the civilian side in our system, you don't have to violate a law in order to challenge its constitutionality in court - you sue the official who enforces it, asking the court for an injunction or a "declaration" that the law is unconstitutional. If you win, it'll still be on the books, but not enforced. There is no need to violate it, or go to prison, in order to fight that good fight.